Appeal from an order of the United States District Court for the Southern District of New York, Sofaer, Judge, denying a petition for a writ of habeas corpus. Affirmed. Judge Oakes concurring in a separate opinion.
Oakes and Winter, Circuit Judges, and MacMahon, District Judge.*fn* Oakes, Circuit Judge (concurring).
McDaniel Brayboy appeals from an order of the United States District Court for the Southern District of New York, Judge Abraham D. Sofaer, denying his petition for a writ of habeas corpus. Judge Sofaer granted a certificate of probable cause and Brayboy claims here, as he did below, that the writ should issue on the grounds that a pre-trial identification procedure was impermissibly suggestive and that the trial court unconstitutionally shifted the burden of proof as to criminal intent in instructing the jury. We affirm.
The facts are not in dispute. Brayboy was convicted on two counts of attempted murder in the second degree after a jury trial in New York's Westchester County. Central to the prosecution's case was the identification testimony of the victim, Katherine Kolkmann. Before admitting her testimony, the trial court held a hearing to determine whether her proposed identification of Brayboy was the result of unduly suggestive methods used by the police.
That hearing revealed the following. On April 28, 1975, at approximately 10:00 p.m., a Fred Baldoni was driving Kolkmann to a friend's house in Westchester County, when a station wagon bumped Baldoni's vehicle from behind. He pulled over to inspect for damage and to talk to the driver of the wagon. After a brief conversation with the driver, Baldoni returned to his car. He leaned toward the glove compartment and left the car again. At that point, Kolkmann observed a man exit the passenger side of the station wagon and move toward her vehicle. As he approached on the passenger side, the man drew a gun and fired a shot into the car which grazed her head. As Kolkmann dove for the baseboard of the car, other shots were being fired outside. After 30 seconds, the station wagon drove away.
A three-year investigation followed, during which Kolkmann was unable to identify her assailant from police photographic files or describe him in sufficient detail to permit a police artist to draw an accurate portrait. On June 8, 1978, she was shown a photo array which included a photo of Brayboy but she made no identification. Nine days later she was driven from Yonkers to Grand Central Station. Though she had already surmised as much, she was told the purpose of the trip was to make a possible identification. When she arrived, she entered the Station through the Vanderbilt Avenue entrance and walked through the terminal. She exited at 42nd Street and proceeded west toward Vanderbilt Avenue. Petitioner was working on a scaffold located at the corner of Vanderbilt and 42nd Street. Recognizing petitioner as her assailant, she returned to the police and so informed them. They in turn drove her back by the scaffolding. While crouching in the car, she made a second identification.
On the basis of these facts, Kolkmann's identification testimony was admitted. Following her identification of Brayboy at the outset of the trial, the defense was allowed to present its evidence on the identification issue, namely, testimony that only four of the Conrail employees who work with Brayboy are black. It was also stipulated that Brayboy was 5 feet 7 inch (Kolkmann had identified her assailant as approximately 5 feet 10 inch) and that he had perfect vision (Kolkmann had described the man who shot her as having worn slightly tinted glasses). Thereafter, the prosecution resumed its main case and offered accomplice testimony by a Thomas Hutchinson, who corroborated Kolkmann's overall story as to the events of April 28, 1975.
Brayboy was charged with two counts of attempted murder as well as the lesser included offenses of criminal assault and criminal possession of a weapon. Petitioner's principal defense was one of mistaken identification. However, he did not concede that the assailant intended to kill Kolkmann, a necessary jury finding to convict on the charge of attempted murder.
In charging the jury on the attempted murder counts, the trial judge issued the following instruction:
'Intent' is defined as follows: A person acts intentionally with respect to a result or to conduct described by a Statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.
Further, I charge you that a man is deemed to intend the natural consequences of his act, and unless the act was done under circumstances or conditions which preclude the existence of such intent, you have a right to find ...